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Tuesday, December 13, 2011

In this post on TorahMusings, Rabbi Wurzburger is quoted as saying: "The Rav’s objection to the employment of modern historic and textual scholarship to ascertain the meaning of halakha reflects not naive traditionalism but highly sophisticated post-modern critical thought. He insists that halakha operate with its own unique canons of interpretation. According to R. Soloveitchik, scientific methods are appropriate only for the explanation of natural phenomena but have no place in the quest for the understanding of the normative and cognitive concepts of halakha, which imposes its own a priori categories, which differ from those appropriate in the realm of science. It is for this reason that the Rav completely ignores Bible criticism and eschews the “positive historical” approach of the “Science of Judaism.”"

Perhaps the use, in the passage quoted above, of the term 'post-modern' is to simply refer to a category of thought that is "after" modernism. After all, Rav Soloveitchik is clear in Halachik Mind that (as pointed out in the passage), to the extent anything can claim the title "true" or "valid" in a post-Kantian world, there are many parallel systems of cognition, which are valid for their field of application. A key element of this is that, within their fields, these systems are valid. This is far from the standard definition of post-Modernism, that apparent realities are nothing more than social constructs, and that narratives take the place of the search for truth.

In fact, Halachik Mind ends up vouching for a methodology of religion and by extension, Halacha, which is essentially scientific: "...it would be fallacious to apply the method of independent philosophy in the field of religion. It would inevitably result in a labyrinth of mysticism. If modern philosophy, in it quest for "independence", has become arbitrary, then religious thought, which is particularly prone to abstruseness, needs be all the more wary of such an alignment. The student of religion, starting from the principle of cognitive pluralism, would act wisely in taking his cue from the scientist rather than the philosopher. The structural designs of religion cannot be intuited through any sympathetic fusion with an eternal essence, but must be reconstructed out of objective religious data and central realities. The uniqueness of the religious experience resides in its objective normative components." (62) We must go from the objective to the subjective, and not the other direction.

However, the scientific method wielded in Halacha must be based on different data points than in common scientific inquiry: legal ones. In Part Four, Rabbi Soloveitchik explains that the very data points of the scientific exploration of religion must be the normative objective components, the legal rules themselves. We start not from an ethical question of "why" but the descriptive question of "what". Instead of putting Halcha up to be constructed out of extra-religious considerations, he claims that Halacha contains the data from which we reconstruct our subjective activity. We blow the shofar, not because it (and only it) reminds us of teshuva; rather, we do teshuva because we recognize that as the subjective origin (and a non-necessary result which we are expected to glean) of the objective commandment (94-96).

This view of Rav Soloveitchik is not, to my mind, necessarily at odds with historical positivism. Nothing in this view fundamentally eschews the historical approach to legal theory and Halacha. Rav Soloveitchik's unwillingness to engage in the "science of Judaism" is much more a function of the prevailing mood in Weimar Germany against historicism. See Gordon's Rosenzweig and Heidegger: Between Judaism and German Philosophy 195n5, and see his reference to David Myers' Historicism and Its Discontents in German-Jewish Thought. This tendency is aptly summed up: "By the late nineteenth century and into the Weimar period, historicism was seen by many as a grinding force that corroded social values and was emblematic of modern society's gravest ills." (I am not here judging the merits of historicism or the dangers articulated by its critics.) Additionally, the realization that historical positivism would be a tremendous innovation and revolution in standard yeshiva study, to wit, the controversy over Wissenschaft des Judentums, probably also tempered the willingness of many rabbis to engage in it (as commenters point out on the post) . Thus it is not at all his post-Kantian view of reality that led Rav Soloveitchik to reject the historical positivist approach to Halacha, but, ironically, historical, sociological and cultural considerations.

UPDATE:

After discussion with two friends, I realize that there is a need to differentiate between historical positivism as a theory, and historical necessity as an explanation of data points. Historical positivism as a theory states that the historical realities results in the creation of legal principles. For example, the shortage of wood leads to the creation of the Halachik concept of lavud, and the reticence of lenders leads to the creation of the concept of prosbol. The very concept is created out of historical necessity, and Halacha is in a large sense, a function of reactions to socio-historical events instead of a unified legal theory.

On the other hand, even one who rejects these theories on the grounds that Halacha is an objective, conceptual system which is unchanging at its core, would still accept historical data as explanations, not for the creation, but for the development (or discovery) of latent halachik principles into halachik tools or takanot. For example, the concepts at the root of lavud were part of the core halachik system from the beginning. The rule that loans owned by the courts are not subject to cancellation in the sh'mitta year, and the idea that one can pay a partner a certain amount and thus purchase the responsibility for fluctuations (up or down) in the business venture (the foundation of the heter iska), are concepts that are not groundbreaking; they existed in halacha from the very beginning. However, this viewpoint would not discount that the process of the development of halacha is historically contingent. Socio-historic necessity is valid as an explanation as to why the Rabbis decided to innovate the idea that one can give his personal loans to the courts, thus turning them into court-held loans which are not cancelled. The innovation lies in the willingness to turn a personal loan into a court-held one. Once this development is accomplished, application of the age-old idea that court-held loans are not subject to shemitta cancellation is non-controversial. Similarly, once social changes necessitated the chiddush that we may view interest on a loan as a business venture in which a partner purchases responsibility for fluctuations in the business venture's profitability in exchange for a fixed percentage, the application of the heter iska becomes non-controvesial as well.

Thus, historical considerations play a part in the development of the application of core halachik ideas, but they do not engage in the creation of these ideas. This is the point at which Rav Soloveitchik and historical positivists would diverge in principle, ideologically.

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